demeanors.1 For what causes, and upon what grounds this distinction was maintained, or even excused, it is impossible to assign any satisfactory, or even plausible reasoning. Surely, a man's life must be of infinitely more value, than any subordinate punishment; and if he might protect himself against the latter by proofs of his innocence, there would seem to be irresistible reasons for permitting him to do the same in capital offences. The common suggestion has been, that in capital cases no man could, or rather ought, to be convicted, unless upon evidence so conclusive and satisfactory, as to be above contradiction or doubt. But who can say, whether it be in any case so high, until all the proofs in favour, as well as against, the party have been heard? Witnesses for the government may swear falsely, and directly to the matter in charge; and, until opposing testimony is heard, there may not be the slightest ground to doubt its truth; and yet, when such is heard, it may be incontestible, that it is wholly unworthy of belief. The real fact seems to be, that the practice was early adopted into the criminal law in capital cases, in which the crown was supposed to take a peculiar interest, in base subserviency to the wishes of the latter. It is a reproach to the criminal jurisprudence of England, which the state trials, antecedently to the revolution of 1688, but too strongly sustain. They are crimsoned with the blood of persons, who were condemned to death, not only against law, but against the clearest rules of evidence.

1 Hawk. P. C. ch. 46, § 159; 2 Hale P. C. 283; 1 Tuck. Black. Comm. App. 305.

2 2 Hale P. C. 283.

3 Rawle on Const. ch. 10, p. 129, 130.

§ 1787. Another anomaly in the common law is, that in capital cases the prisoner is not, upon his trial upon the general issue, entitled to have counsel, unless some matter of law shall arise, proper to be debated. That is, in other words, that he shall not have the benefit of the talents and assistance of counsel in examining the witnesses, or making his defence before the jury. Mr. Justice Blackstone, with all his habitual reverence for the institutions of English jurisprudence, as they actually exist, speaks out upon this subject with the free spirit of a patriot and a jurist. This, he says, is "a rule, which, however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner, that is, shall see, that the proceedings against him are legal, and strictly regular, seems to be not all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man, which is yet allowed him in prosecutions for every petty trespass. The defect has indeed been cured in England in cases of treason; but it still remains unprovided for in all other cases, to, what one can hardly help deeming, the discredit of the free genius of the English constitution.

§ 1788. The wisdom of both of these provisions is, therefore, manifest, since they make matter of constitutional right, what the common law had left in a most imperfect and questionable state. The right to have

3

1 4 Black. Comm. 355.- Mr. Christian in his note on the passage has vindicated the importance of allowing counsel in a strain of manly reasoning. 4 Black. Comm. 356, note 9.

2 4 Black. Comm. 356; 1 Tuck. Black. Comm. App. 305.

3 3 Wilson's Law Lect. 170, 171; 1 Tuck. Black. Comm. App. 305; Rawle on Const. ch. 10, p. 128, 129.

witnesses sworn, and counsel employed for the prisoner, are scarcely less important privileges, than the right of a trial by jury. The omission of them in the constitution is a matter of surprise; and their present incorporation is matter of honest congratulation among all the friends of rational liberty.

§ 1789. There yet remain one or two subjects connected with the judiciary, which, however, grow out of other amendments made to the constitution; and will naturally find their place in our review of that part of these Commentaries, which embraces a review of the remaining amendments.

CHAPTER XXXIX.

DEFINITION AND EVIDENCE OF TREASON.

§ 1790. THE third section of the third article is as follows: "Treason against the United States shall con"sist only in levying war against them, or in adhering "to their enemies, giving them aid and comfort. No "person shall be convicted of treason, unless on the "testimony of two witnesses to the same overt act, "or on confession in open court."

§ 1791. Treason is generally deemed the highest crime, which can be committed in civil society, since its aim is an overthrow of the government, and a public resistance by force of its powers. Its tendency is to create universal danger and alarm; and on this account it is peculiarly odious, and often visited with the deepest public resentment. Even a charge of this nature, made against an individual, is deemed. so opprobrious, that, whether just or unjust, it subjects him to suspicion and hatred; and, in times of high political excitement, acts of a very subordinate nature are often, by popular prejudices, as well as by royal resentment, magnified into this ruinous importance.1 It is, therefore, of very great importance, that its true nature and limits should be exactly ascertained; and Montesquieu was so sensible of it, that he has not scrupled to declare, that if the crime of treason be indeterminate, that alone is sufficient. to make any government degenerate into arbitrary

13 Wilson's Law Lect. ch. 5, p. 95, &c.

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power. The history of England itself is full of melancholy instruction on this subject. By the ancient common law it was left very much to discretion to determine, what acts were, and were not, treason ; and the judges of those times, holding office at the pleasure of the crown, became but too often instruments in its hands of foul injustice. At the instance of tyrannical princes they had abundant opportunities to create constructive treasons; that is, by forced and arbitrary constructions, to raise offences into the guilt and punishment of treason, which were not suspected to be such. The grievance of these constructive treasons was so enormous, and so often weighed down the innocent, and the patriotic, that it was found necessary, as early as the reign of Edward the Third, for parliament to interfere, and arrest it, by declaring and defining all the different branches of treason. This statute has ever since remained the pole star of English jurisprudence upon this subject. And although, upon temporary emergencies, and in arbitrary reigns, since that period, other treasons have been created, the sober sense of the nation has generally abrogated them, or reduced their power within narrow limits.1

§ 1792. Nor have republics been exempt from violence and tyranny of a similar character. The Federalist has justly remarked, that newfangled and artificial treasons have been the great engines, by

1 Montesq. Spirit of Laws, B. 12, ch. 7; 4 Black. Comm. 75.

2 4 Black. Comm. 75; 3 Wilson's Law Lect. 96; 1 Tucker's Black. Comm. App. 275, 276.

3 Stat. 25, Edw. 3, ch. 2; 1 Hale, P. C. 259.

4 See 4 Black. Comm. 85 to 92; 3 Wilson's Law Lect. 96, 97, 98, 99; 1 Tuck. Black. Comm. App. 275.